Wednesday, 24 April 2013

POVERTY: Culture of disbelief works against asylum seekers

Temporary asylum seeker documents like this one belonging to a migrant in Greece, do not bring the same rights and benefits as refugee status

HIGHLIGHTS

Refugee status decisions often hinge on credibility

But majority of asylum seekers assumed to be fraudulent

Credibility assessments often flawed

Perceptions of dishonesty trump protection need

JOHANNESBURG, 24 April 2013 (IRIN) - Most asylum seekers arrive in host countries with no evidence to prove they have fled persecution. This means the success of their applications for refugee status depends largely on whether their stories are believed. But the credibility of asylum seekers is increasingly being called into question, particularly in countries that receive large numbers of asylum claims.

Some migrants with no hope of acquiring a visa legitimately resort to fabricating stories of persecution, hoping to gain refugee status; this fact has contributed to the view that all asylum seekers should be treated with suspicion and that the majority of asylum applications are fraudulent. It is a view that appears to have taken root among many of the officials who determine refugee status.

A 2012 report by the Irish Refugee Council found that a “culture of disbelief” existed among refugee status decision-makers in Ireland, where only 5 percent of applications for refugee status were granted in 2011, less than half the average acceptance rate in Europe.

The UK approved 23 percent of the 26,000 asylum claims submitted in 2011. A recently released report by Amnesty International found that a quarter of the UK’s asylum rejections in the last three years were overturned on appeal. In 84 percent of such cases analysed for the report, the primary reason given by the immigration judge was that the case worker had made errors in their assessment of the claimant’s credibility.

The UN Refugee Agency (UNHCR) handbook for determining refugee status does not contain specific guidelines on assessing credibility. But it advises that, in the absence of evidence to support refugee applications, applicants whose accounts appear credible should be given “the benefit of the doubt”. It also warns against making judgements based on personal views that the applicant may be an “undeserving case”.

In reality, credibility assessments are heavily reliant on subjective judgements about an applicants’ honesty. Michael Kagan, who teaches at the William S. Boyd School of Law, at the University of Nevada, Las Vegas, has researched credibility assessment in asylum cases. He told IRIN that “judges of all types in all countries tend to be overconfident in their ability to tell apart people who are telling the truth from those who are not.

“We have a centuries-old romantic idea that a judge or juror can look a witness in the eye and find the truth… It would be wonderful in so many ways if this were true, but it just doesn't work.”

He added that the challenge was greater for asylum cases than in most other areas of law. “These assessments must be made with people from other countries, through interpreters, with issues of trauma, shame and simple nerves making it hard for many honest people to appear coherent.”

Trauma undermines credibility

Many asylum seekers’ applications are rejected because of inconsistencies in their stories. But Marivic Garcia, a senior trauma professional at the Centre for the Study of Violence and Reconciliation’s Trauma Clinic in Johannesburg, said that trauma and torture survivors often struggle to recall details of events they may have attempted to block out.

She told IRIN that it was not uncommon for trauma victims to go into a dissociative state, in which they start reliving the traumatic episode, during refugee status determination interviews. “When clients start dissociating, we teach them how to manage that, to identify when it’s starting to happen and to come back [to reality]. But most people haven’t had counselling, and it’s very problematic for them because refugee status determination officers haven’t been trained to deal with it.”

"The officer stopped the interview. I didn't finish my story. He shouted at me, 'Why are you crying?'"

For officials who are not sufficiently trained and supported, listening to endless harrowing asylum stories can lead to burn out and insensitivity. In South Africa, where Home Affairs Department officials must conduct 10 refugee status determinations a day, Garcia said interviewers may simply “shut down applicants when they start to tell a painful story because they can’t deal with it”.

One of Garcia’s clients, Gertrude Nkey, a 51-year-old asylum seeker and rape survivor from the Democratic Republic of Congo, said that her 2011 refugee status interview at a Home Affairs office in Durban ended abruptly when she started crying. “The officer stopped the interview,” she told IRIN. “I didn’t finish my story. He shouted at me, ‘Why are you crying?’”

Nkey’s asylum application was rejected as unfounded, a fact that she struggles to comprehend. “How they could say that after hearing my story?” she asked, adding that she is still waiting for a date to appeal the decision.

Truth beneath falsehoods?

Refugee law experts have argued that the focus on an asylum seekers’ credibility is misplaced and that the determining factor in refugee status eligibility should be whether the claimant’s fear of persecution is well-founded. This is supported by UNHCR’s handbook, which notes that “untrue statements by themselves are not a reason for refusal of refugee status”.

Speaking at a conference on the role of credibility in international protection in Dublin last year, Guy Goodwin-Gill, a professor of international refugee law at the University of Oxford, said, “We may not believe the asylum seeker… but we may well know objectively that he or she is at risk of persecution because of factors such as race, religion or ethnic origin.”

In a 2011 article published on openDemocracy.net, asylum expert James Souter pointed out that asylum seekers may lie in their claim while being fully eligible for asylum. “They may lie because they are terrified that their real story is not powerful enough to gain the protection they may badly need,” he wrote, or they may lie “to fit themselves within restrictive refugee law”.

Both the New York Times and the New Yorker have published articles in recent years about unscrupulous legal advisers in the US pushing fake stories on asylum seekers. The reports note that individuals with genuine asylum claims sometimes use fraudulent stories because they are led to believe a more dramatic story will improve their chances of being granted refugee status.

Training needed

Law professor Kagan notes that while there is no way to remove all doubt in a refugee status determination, “there are better and worse ways to interview someone and determine how likely they are to be telling the truth. But few judges in the asylum field have been trained well in this.”

UNHCR conducts refugee status determination in a number of countries and, according to Kagan, its staff is among the best trained. The agency also provides training on credibility assessment but is limited by governments’ willingness to accept this kind of assistance.

Kagan said he would like to see UNHCR publish an official set of guidelines on credibility assessment that would incorporate the best training and research. “I think this would be a great way to start a re-assessment of how we deal with the credibility challenge.”

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After service in the British SAS Regiment the author became a physician and then an orthopaedic surgeon.
He has held professorial positions in Canada, Vietnam and the United States, practiced and taught orthopaedic surgery in three continents and in several wars.
He has extensive experience as an expert witness in court. Somewhere along the way, time was found to operate a four hundred acre mixed farm, a one hundred seat restaurant and to obtain a licence as a flying instructor.
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